The recent opinion of the North Carolina Court of Appeals in M.E. v. T.J., No. COA18-1045 has more twists than a Chubby Checker look-alike contest. The opinion is long and the facts and procedure are somewhat convoluted, but here’s a bare-bones synopsis.
Plaintiff and defendant, both women, were dating. When plaintiff decided to end the relationship, defendant allegedly became abusive. Plaintiff sought a Domestic Violence Protective Order (DVPO) and an ex parte temporary DVPO, both pursuant to Chapter 50B of the North Carolina General Statutes. For those who are dating but neither living together nor married, the protections of that statute are limited to couples “of the opposite sex.”
In contrast, Chapter 50C provides the protections of a no-contact order for “person[s] against whom an act of unlawful conduct has been committed by another person not involved in a personal relationship with the person as defined in G.S. 50B-1(b).” N.C.G.S. § 50C-1(8). One significant difference between a Chapter 50B DVPO and a Chapter 50C no-contact order appears to be that Chapter 50B can be used ex parte to restrict access to firearms by the restrained party.
At a hearing on plaintiff’s motions for an ex parte Chapter 50B DVPO, the trial court denied the request on the grounds that plaintiff and defendant were not of opposite sexes, but allowed plaintiff’s motion for an ex parte 50C no-contact order.
Approximately one week later, the trial court conducted a hearing on plaintiff’s motions for a permanent Chapter 50B DVPO and a permanent Chapter 50C no-contact order. During the argument, plaintiff’s attorney stated that Chapter 50B was unconstitutional in light of the decision of the Supreme Court of the United States in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). The trial court declined to address the constitutionality of the statute based upon the bare oral assertions made by plaintiff’s counsel during the hearing. Instead, though obviously unhappy about the outcome, the trial court followed the existing statutory language and denied plaintiff’s Chapter 50B request. In its order, the trial court observed that the General Assembly had not amended the language of Chapter 50B in the aftermath of Obergefell. The trial court did, however, issue a permanent Chapter 50C no-contact order. Plaintiff filed notice of appeal to the North Carolina Court of Appeals.
The Court of Appeals allowed several entities to appear as amici on behalf of plaintiff, including the North Carolina Department of Justice. Noting that all these amici were on one side and that the defendant was not actively participating in the appeal, the Court of Appeals on its own motion entered an order appointing a pro bono court-assigned amicus curiae (“amicus”) “to defend the ruling of the trial court.” For clarity, this post refers to the North Carolina Pro Bono program appointee Lorin Lapidus of Nelson Mullins as “amicus,” who should not be confused with the other amici appearing in the case on plaintiff’s behalf.
While carrying out his duties, amicus uncovered quirks that called into question not only the trial court’s ability to address the constitutionality of Chapter 50B, but also its jurisdiction over the appeal.
As to the latter, amicus’s research revealed that plaintiff filed her initial motion for a Chapter 50B DVPO on 31 May 2018. Several hours later that same day, plaintiff filed an additional motion for a Chapter 50C no-contact order. These two motions were given different CVD numbers by the clerk of court. Eight minutes after filing her Chapter 50C request, plaintiff filed a notice of voluntary dismissal without prejudice of her Chapter 50B motion. Documents in the trial court record apparently showed that the clerk of court clocked in plaintiff’s dismissal of her Chapter 50B complaint.
However, it further appears that over the next few minutes, plaintiff’s voluntary dismissal form was marked through with a diagonal line, the word “amended” was added, and the following words were appended to the already-filed voluntary dismissal: “I strike through this voluntary dismissal. I do not want to dismiss this action.” Though the writer used first person and presumably is plaintiff, it does not appear that a signature or any of the other trappings of a newly filed complaint accompanied this altered document. The document was then refiled with the clerk of court under the same file number, and therefore bears two separate file stamps.
According to amicus, the trial court was never made aware that this dismissal form had been filed, “amended,” and refiled. Moreover, the dismissal form was not included in the record on appeal. While fulfilling its appointed duty to defend the trial court’s judgment, amicus spotted the omission and moved to file under seal a Rule 9(b)(5) supplement to the printed record on appeal that contained the document as an exhibit to the motion to seal. The motion was allowed by the Court of Appeals.
Amicus then filed a brief and a motion to dismiss with the Court of Appeals. The merits brief argued that the constitutional issues raised by plaintiff had not been adequately raised before the trial court and thus had not been preserved for appellate review. Amicus’s motion to dismiss argued that plaintiff’s voluntary dismissal of her motion for a Chapter 50B DVPO divested the trial court of subject matter jurisdiction of that issue, thus mooting the appeal.
In a 92-page opinion, the Court of Appeals reversed the trial court, holding that the “opposite sex” wording of Chapter 50B was unconstitutional. The Court of Appeals remanded the matter to the trial court for summary entry of a Chapter 50B...
